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'Great repeal bill' will create sweeping powers to change laws for Brexit 'Great repeal bill' will create sweeping powers to change laws for Brexit
(about 7 hours later)
The government will create sweeping temporary powers to allow ministers to tweak laws that would otherwise not “work appropriately” after Brexit, David Davis has announced. Government plans to create temporary powers to let ministers amend thousands of laws in the wake of Brexit have been condemned as a “sweeping” executive power grab, despite David Davis insisting any such changes would be technical.
Unveiling the government’s white paper on the “great repeal bill”, the Brexit secretary told MPs that as well as transposing aspects of EU legislation into UK law, the bill would create a new power to “correct the statute book”. Introducing a white paper setting out plans to transfer thousands of EU regulations into UK legislation, the Brexit secretary said any substantive policy issues would be dealt with by new laws scrutinised by parliament.
“Once EU law has been converted into domestic law, parliament will be able to pass legislation to amend, repeal or improve any piece of EU law it chooses – as will the devolved legislatures, where they have power to do so,” he said. However, Davis said, there was a need for further steps “to provide a smooth and orderly exit” because a large number of laws would not work properly after Brexit, for example, those that made use of EU institutions of which the UK might no longer be a member.
“However, further steps will be needed to provide a smooth and orderly exit. This is because a large number of laws – both existing domestic laws and those we convert into UK law – will not work properly if we leave the EU without taking further action. Some laws, for example, grant functions to an EU institution with which the UK might no longer have a relationship. The government’s planned “great repeal bill” – it will have a different official name as value-laden terms such as “great” are not permitted in legislative titles – would grant ministers powers to make many of these changes without the approval of MPs, Davis said.
“To overcome this, the great repeal bill will provide a power to correct the statute book where necessary to resolve the problems which will occur as a consequence of leaving the EU.” This use of secondary legislation powers would “help make sure we have put in place the necessary corrections before the day we leave the EU”, he told the Commons, adding that any such powers would be time-limited. “Given the scale of the changes that will be necessary and the finite amount of time available to make them, there is a balance to be struck between the importance of scrutiny and correcting the statute book in time.”
Davis said the new powers would be temporary. “I can confirm this power will be time-limited. And parliament will need to be satisfied that the procedures in the bill for making and approving the secondary legislation are appropriate. The announcement prompted concern from Labour and the Liberal Democrats, as well as a warning from Nicola Sturgeon that Scotland could face a “power grab” if areas returned from Brussels were not fully devolved.
“Given the scale of the changes that will be necessary and the finite amount of time available to make them, there is a balance to be struck between the importance of scrutiny and correcting the statute book in time. The shadow Brexit secretary, Keir Starmer, said the proposed bill gave sweeping powers to the executive to change regulations. “Sweeping, because it proposes a power to use a delegated legislation to correct and thus change primary legislation, and also devolved legislation,” he told MPs. “Sweeping because of the sheer scale of the exercise.”
“As the constitution committee in the other place recently put it, ‘… the challenge parliament will face is in balancing the need for speed, and thus for governmental discretion, with the need for proper parliamentary control of the content of the UK’s statute book.’” Starmer added: “In those circumstances one might expect some pretty rigorous safeguards to the use of these sweeping powers, but none are found in the white paper.”
However, the plan was condemned by Labour as a power-grab, allowing changes to be made with less parliamentary scrutiny. He said that Davis had to “face down” calls from fellow Conservative MPs for rights covering employment and other areas to be watered down, and guarantee that any changes to protections be introduced via primary legislation in parliament.
The shadow Brexit secretary, Keir Starmer, said the proposed bill gave sweeping powers to the executive to change regulations. Davis said he could give this guarantee: “Let me reiterate – the use of delegated legislation will be for technical changes.”
“Sweeping, because it proposes a power to use a delegated legislation to correct and thus change primary legislation, and also devolved legislation. Sweeping because of the sheer scale of the exercise.” The Lib Dem MP Tom Brake said the plans left Theresa May’s government “resembling a medieval court”. He added: “This shameless power grab under the cloak of secondary legislation would have made Henry VIII blush.”
He continued: “In those circumstances one might expect some pretty rigorous safeguards to the use of these sweeping powers, but none are found in the white paper. In those circumstances we should go back to first principles – and that is, there should be no change to rights and protections without primary legislation.” Speaking at first minister’s questions at Holyrood, Sturgeon said the issue for her was whether the repeal bill would mean powers repatriated from Brussels, covering, for instance, agriculture and fishing, being fully devolved.
Starmer said Davis must “face down those on his own side who will not be able to resist the temptation to water these rights and protections down before they’re even put into this bill”. May’s ministers had been unable to guarantee this, Sturgeon said. She said it led her “to suspect that what the Tories are actually planning is a power grab on this parliament, and that will be absolutely unacceptable”.
In response, Davis said the new powers would not be used for such issues. “I have actually said it in my statement, if he reads it,” he said. “Let me reiterate: the use of delegated legislation will be for technical changes.” What seems clear is that much is still to be determined over how the transfer and possible amendment of EU regulations will happen. The white paper confirms the government will pass a series of other bills in the two years before Brexit on subjects including customs and immigration.
These would be things such as changing regulations to refer to a UK regulatory body rather than the former EU equivalent, he said. Starmer said the scope of the white paper was narrower than he had expected, but that ministers seemed to be planning as many as 12 or 13 bills on substantive policy issues. “It’s very thin, but a lot is going to spin off it,” he said.
Nick Clegg, who leads on Brexit matters for the Liberal Democrats, praised Davis for “ignoring some of the more over-excitable demands from parts of the Brexit press and some of his backbenchers”. Even Davis appeared uncertain on some issues. Answering a question from the Labour MP Kevin Brennan, the Brexit secretary said it was “quite likely” MPs would get a specific vote on any decision to pull the UK out of the European Economic Area (EEA), the wider EU-based free trade region.
However, the former deputy prime minister said there must be reassurance that EU directives on issues such as working time and the environment would remain in place, whatever the objections of critics. However, his own department later corrected this, saying that because leaving the EEA was integral to leaving the EU, they did “not envisage a vote”.
Clegg said of Davis: “He will know there is a fork in the road: the government will have to either keep those provisions in domestic legislation, in which case they will reasonably say, what on earth was the point of leaving the EU in the first place, or he will remove those provisions, in which case the EU will need exacting safeguards to ensure we’re not undercutting EU standards.” There are also questions about how far seemingly technical changes made by secondary legislation could stray into more substantive areas.
Later during the debate, Davis said he expected MPs would have a vote on any decision to pull the UK out of the European Economic Area, the wider EU-based free trade area. Anand Menon, an EU expert at Kings College, London, said it was wrong to suggest the powers envisaged in the bill could be used merely for technical tweaks. Where existing law referred to an EU institution, for example, there were “political choices to be made about what to replace it with”. He said: “It isn’t simply cut and paste.”
Asked by Labour’s Kevin Brennan whether this would be the subject of a separate vote, as it did not feature in the white paper, Davis replied: “Depending on what the policy decision is, I would think it was quite likely to come before parliament.” The white paper says that while there are no plans to pull the UK out of the European convention on human rights, the EU’s charter of fundamental rights will not be converted into UK law. The paper says this change will not affect individuals’ “substantive rights”. But the campaign group Liberty said the plan left “gaping holes where our rights should be”.
The campaigner Gina Miller, who successfully took the government to court over its plans to trigger Brexit without parliamentary approval, said she was considering legal action to challenge the use of Henry VIII-style powers to alter individuals’ rights.
She told BBC Radio 5 Live Daily: “The government has already blotted its copybook by trying to bypass parliament and use the royal prerogative, so if there is any sniff that they are trying to use Henry VIII powers, that would be profoundly unparliamentary and democratic, and I would seek legal advice, because what you are doing is setting a precedent that government could bypass parliament.”
Davis was later named as one of the members of a high-level cabinet sub-committee which will oversee the Brexit negotiations. However, in what could be seen as a snub, Liam Fox, the international trade secretary, is not part of the group, despite trade being part of its remit.
The European Union exit and trade (negotiations) sub-committee comprises May, the chancellor, Philip Hammond, the home secretary, Amber Rudd, Davis, and the foreign secretary, Boris Johnson.